Employment Lawyers Can Answer Your Employment Law Questions
Hi there, my contract of employment only states as follows. Permanent. Electrician. Grade, Expert. Flexible working arrangement. Part time. Contract hours, 23. Contract type, Mon-Sun. That is it. For 10 years I have worked 4 day shifts, of 23 hours in any 1 week. My problem is, the company have changed the number of days to 5, in any 1 week, with the same hours ( 23 ). But the pay slip, as I said, states, Contract Days/week ----------- 4 days. Without any real dialogue with me,
The payslip itself is unlikely to amount to a contractually binding piece that would determine your working hours. What you would be relying on in this case is something known as custom and practice.
So there is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.
The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify.
Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:
You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal, although you are free to raise a grievance with the employer first to try and deal with this internally.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
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